Constitutional Camouflage

Posted on: October 06, 2017

By Tom Gow

“Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction.” — Thomas Jefferson, September 7, 1803

House rules requiring a Constitutional Authority Statement for every bill submitted have been around for some time. In 1997, the 105th Congress adopted such a rule, imposed on Committee reports. Early on the rules were likely inspired to some extent by outside pressure, but more recently the House GOP merely seems to have discovered a political public relations opportunity.

The current and latest such Rule was adopted by the Bohener-led House in 2011, as promised in the House GOP’s 2010 Pledge to America. The Rule mandated that every bill or joint resolution submitted be accompanied by a statement “citing as specifically as practicable the power or powers granted to Congress in the Constitution to enact the bill or joint resolution.”

In its January 5, 2011 explanation of the new rule, the House Committee on Rules stated:

“The adequacy and accuracy of the citation of constitutional authority is matter for debate in the committee and in the House. The rule simply requires that the bill be accompanied by a constitutional authority statement upon introduction.”

Unfortunately, the “debates” in the House are generally little more than chest pounding by a lead by proponent from the majority party with equal time allotted to a representative of the minority party. If the measure has bipartisan support, opponents are rarely heard. Moreover, in reviewing hundreds of pages in the Congressional Record, your author cannot recall the constitutionality of a measure ever being challenged on the floor of the House.

As the Rules report further stated: “Ultimately, the House will express its opinion on a proposed bill, including its constitutionality, by either approving or disapproving the bill.” So nothing really changed. The requirement for an accompanying Constitutional Authority Statement has not prevented unconstitutional business-as-usual one iota.

No one should be surprised. Given the tremendous forces behind the centralization of more and more unconstitutional functions in the federal government, it would be unreasonable to expect the House GOP leadership willingly to bind themselves down with “the chains of the Constitution.”

As confirmation of those expectations, let’s look at the abuses of Constitutional Authority Statements that pretend those chains don’t exist. Three clauses in particular have been misinterpreted to portray the Constitution as a blank-check authorization: The “General Welfare Clause,” the “Interstate Commerce Clause,” and the “Necessary and Proper Clause.” These willful misconstructions, supported by activist Supreme Court decisions, have long served as protective coloration for the successful drive to create unlimited government.

The “General Welfare Clause”

Undoubtedly, the most common citation of constitutional authority is Article I, Section 8, particularly the introductory “General Welfare Clause.” Here is a typical such authority statement

“Congress has the power to enact this legislation pursuant to the following: Article I, Section 8, Clause 1 of the United States Constitution, to ‘provide for the common Defence and general Welfare of the United States.’”

The “general welfare clause” in Article I, Section 8, is commonly misused to create the appearance that unconstitutional congressional acts are constitutional. In 1987, Notre Dame Law School Professor Charles Rice clarified the misuse of the clause:

“The Constitution created a government of limited, delegated powers. The term ‘general welfare’ in Article I, Section 8, does not confer on Congress a general power to legislate and regulate for purposes beyond those enumerated in the remaining clauses of Section 8. If the General Welfare Clause had been intended to confer an open-ended power to legislate for whatever purposes Congress might consider necessary for the general welfare, it would have made no sense for the framers to have followed it with what would have been a needless list of particular powers that would have been included by implication in the general one. In fact, the clause did not confer a general power to enact legislation at all.

“Instead, it conferred a power only to enact legislation to ‘lay and collect’ taxes and, by implication, to spend the revenue raised by those taxes for the ‘general welfare.’ It was, then, not a general power to regulate the activities of the people, but a power to tax and to appropriate, i.e., to spend, which was limited to the purposes stated in the remaining clauses of Section 8.”

In the Federalist No. 41, James Madison, “the Father of the Constitution,” had also rejected the claim that the General Welfare Clause “amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare”:

“For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

During congressional debate on February 7, 1792, Madison warned:

“[I]f Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, every thing, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress….”

But politicians today still get away with claiming that the clause gives them a grant of power to do almost anything if they can project some benefit for the general welfare. (Our example: How about Congress forbidding families from having more than one child to promote population control or to stop climate change?)

Frequently, Congressional Authority Statements merely refer to the entire Article I, Section 8, and not just its preamble, without identifying any particular power. They thus imply that Article I, Section 8 provides Congress with general legislative authority. But Alexander Hamilton refuted this notion in The Federalist, No. 83 by pointing to the Constitution’s enumeration of specific powers:

“This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.”

Clause 8 states: “[The Congress shall have Power:] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” [Emphasis added.]

The middle section of this clause was designed to give Congress the power to prevent the states from inhibiting the interstate flow of goods through trade barriers, as they had previously done. In allaying Anti-federalist concerns, James Madison stated that the clause was not designed “to be used for positive purposes,” but was to serve as a “a negative and preventive provision against injustice among the States themselves.”

And for many years in our nation’s history this was well understood and observed. “Nonetheless,” as the late Congressman Lawrence P. McDonald observed in his book, We Hold These Truths — A reverent review of the United States Constitution (1976), “more pressures were put on Congress to enlarge its powers under the Interstate Commerce Clause than under any other provision of the Constitution. Commercial affairs, being among the most pervasive and the most profitable of man’s activities, produced many reasons for such pressures.”

The “Necessary and Proper Clause”

Article I, Section 8, Clause 18, commonly referred to as the “necessary and proper clause,” authorizes Congress to “make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.” [Emphasis added.]

In The Federalist, No. 44, James Madison wrote: “Without the substance of this power, the whole Constitution would be a dead letter.” And a report on the Virginia Resolutions, drafted by Madison, stated that this clause “is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those [powers] otherwise granted are included in the grant.”

Yet despite its clear meaning, the clause has been eagerly misinterpreted as an “elastic clause” authorizing Congress to do virtually anything it decides is “necessary and proper.”

In arguing against the constitutionality of a national bank, Thomas Jefferson further admonished against the creative use of the “necessary and proper clause” (February 15, 1791):

“It has been urged that a bank will give great facility or convenience in the collection of taxes. Suppose this were true: yet the Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient,’ for effecting the enumerated powers. If such a latitude of construction be allowed to this phrase as to give any non-enumerated power, it will go to every one, for there is not one which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers.”

And One More

The House Appropriations Committee has often cited Article I, Section 9, Clause 7 as authorization for appropriations for blatantly unconstitutional programs and departments. The clause states: “No money shall be drawn from the Treasury but in consequence of appropriations made by law….”

Citing this clause as an authorization to spend money is an insult to our intelligence. The clause is akin to a corporate requirement that two officers sign every check. In no way would such a requirement by itself entitle the officers to write checks at their pleasure.

In Summary

For decades, the Establishment media in “informing” public opinion have conveniently ignored: 1) the federalist principles America’s Founders incorporated in the Constitution; and 2) their vision that the Constitution imposed strict limits on what the federal government could and could not do — it could only properly do what was specifically delegated to it. With regard to both, James Madison stated in The Federalist No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce….”

And in The Federalist No. 14, Madison further commented on the limited purpose of the federal government:

“Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.”

The Solution

America’s Founders intended for the people to control their new government through the House of Representatives. To promote local accountability, they required representatives to stand for frequent elections (every two years) in relatively small districts, and they gave the House the all-important power of the purse. As James Madison emphasized in the Federalist No. 58, a simple majority in the House alone has the power to bring government under control:

“The House of Representatives cannot only refuse, but they alone can propose the supplies requisite for the support of government. They, in a word, hold the purse — that powerful instrument … [for reducing] … all the overgrown prerogatives of the other branches of government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The reason the House hasn’t exercised that authority in recent times is that no simple majority has, or can acquire on its own, the desire and backbone to do so. Such a majority would have to stand up to the Establishment’s grip on the parties and withstand its dominating influence on public opinion.

Realistically, the necessary backbone must come from an informed, engaged electorate following new leadership, provided through a new channel of communications. Freedom First Society was founded to offer that leadership. See also our online no-nonsense congressional scorecard to find out whether your representative is voting to continue or roll back Washington’s assault on America and our campaign page: Congress: Just Vote the Constitution!

Footnote: The history of Supreme Court misconstruction of the Constitution is recounted in We Hold These Truths — A reverent review of the United States Constitution (1976) by the late Congressman Lawrence (Larry) Patton McDonald (See Chapter V: A Breach in the Wall).